Master Supreme Court upheld a conviction for burning a draft card and announced the four-part O'Brien test governing content-neutral regulation of expressive conduct. with this comprehensive case brief.
United States v. O'Brien is the Supreme Court’s seminal decision on how courts evaluate government regulations that incidentally burden expressive conduct—actions that communicate a message, such as burning a draft card or wearing an armband. Prior to O’Brien, First Amendment doctrine focused largely on verbal expression or printed speech. O’Brien filled a crucial gap by articulating a structured analysis for laws that regulate conduct with both speech and non-speech elements, ensuring that important governmental interests can be pursued without unduly suppressing expression.
The case established the four-part O’Brien test, a form of intermediate scrutiny applied to content-neutral regulations of expressive conduct. The Court upheld a federal statute prohibiting the destruction or mutilation of draft cards, finding that the law furthered substantial, message-neutral administrative interests in the Selective Service system. O’Brien remains a cornerstone of First Amendment law, shaping later decisions on symbolic speech and content-neutral regulation.
United States v. O'Brien, 391 U.S. 367 (1968) (U.S. Supreme Court)
David Paul O’Brien publicly burned his Selective Service registration certificate (a “draft card”) on the steps of a courthouse in Boston to protest U.S. involvement in the Vietnam War. He was arrested and charged under a 1965 amendment to the Universal Military Training and Service Act, codified at 50 U.S.C. App. § 462(b)(3), which made it a federal crime to knowingly destroy or mutilate a Selective Service certificate. O’Brien argued that his act of burning the card was expressive conduct protected by the First Amendment and that the amendment was unconstitutional both on its face and as applied to him. The district court convicted O’Brien. On appeal, the First Circuit reversed, concluding that the law impermissibly infringed First Amendment rights, relying in part on statements in the legislative history suggesting an intent to suppress anti-war expression. The United States sought review. The Supreme Court granted certiorari and reversed the First Circuit, upholding the statute and O’Brien’s conviction.
Does a federal statute criminalizing the knowing destruction or mutilation of Selective Service registration certificates violate the First Amendment when applied to a defendant who burns his draft card as a form of political protest?
When speech and non-speech elements are combined in the same course of conduct, a government regulation is sufficiently justified if: (1) it is within the constitutional power of the government; (2) it furthers an important or substantial governmental interest; (3) the governmental interest is unrelated to the suppression of free expression; and (4) the incidental restriction on First Amendment freedoms is no greater than is essential to the furtherance of that interest (i.e., is narrowly tailored in the sense required for intermediate scrutiny).
No. The statute is a constitutional, content-neutral regulation of conduct that serves substantial governmental interests unrelated to suppressing expression, and its incidental effect on expression is no greater than essential. O’Brien’s conviction was properly sustained.
The Court, per Chief Justice Warren, first assumed that O’Brien’s conduct—burning his draft card—was expressive within the ambit of the First Amendment. It nonetheless upheld the statute under the newly articulated test for expressive conduct. (1) Constitutional power: Congress acted within its constitutional authority to raise and support armies and administer the Selective Service system. Ensuring the integrity and availability of registration certificates falls within that power. (2) Important or substantial interest: The government has substantial, message-neutral administrative interests in maintaining an efficient draft system. Draft cards serve multiple non-communicative functions—identification, classification verification, and facilitation of communications between registrants and boards. Preserving the physical card furthers those operational needs. (3) Interest unrelated to suppressing expression: The statute targets the non-speech elements of the conduct—the destruction or mutilation of a government-issued document—regardless of the actor’s message or viewpoint. Its text and structure do not hinge on the content of any protest or communicative intent. The Court rejected reliance on isolated statements in legislative history to invalidate a facially neutral statute, emphasizing that constitutional adjudication generally does not turn on subjective legislative motive. (4) Incidental restriction no greater than essential: The law does not prohibit public protest or political advocacy about the draft or the war; it forbids only the destruction or mutilation of the registration certificate itself. Because the draft card’s preservation is directly tied to substantial administrative interests, and ample alternative channels exist to express opposition to the war, the incidental burden on expression is narrowly tailored to the government’s operational needs. Addressing facial challenges, the Court concluded the statute was neither overbroad nor vague as it clearly proscribed specific acts involving the draft card. The Court reversed the First Circuit and reinstated O’Brien’s conviction.
O’Brien is the foundational case for regulating expressive conduct under the First Amendment. It created the four-part O’Brien test—often described as intermediate scrutiny for content-neutral regulations that incidentally burden expression. The decision underscores that the First Amendment does not immunize all conduct from regulation simply because the actor intends to convey a message. O’Brien also instructs courts to focus on a law’s objective operation and neutrality rather than parsing legislative motive. The O’Brien framework has been widely applied in cases involving symbolic expression and conduct regulations, such as public nudity ordinances (Barnes v. Glen Theatre), restrictions on camping in public parks (Clark v. Community for Creative Non-Violence), and various permitting or administrative rules. By contrast, when the governmental interest is related to suppressing the message (e.g., flag-burning bans motivated by preserving a symbol’s meaning), strict scrutiny applies and such laws typically fail (Texas v. Johnson; United States v. Eichman).
The O’Brien test governs content-neutral regulations of conduct that incidentally burden expression. A regulation is valid if: (1) it is within the government’s constitutional power; (2) it furthers an important or substantial governmental interest; (3) that interest is unrelated to suppressing expression; and (4) the incidental restriction on First Amendment freedoms is no greater than essential to further that interest. Courts use it when conduct has both speech and non-speech elements (e.g., symbolic protests).
Yes, the Court assumed—without definitively deciding—the expressive character of the act. It then held that even assuming First Amendment coverage, the statute survived because it satisfied the O’Brien test as a content-neutral regulation furthering substantial administrative interests unrelated to suppressing speech.
Both apply intermediate scrutiny to content-neutral regulations and require narrow tailoring to substantial government interests with alternative channels for expression. O’Brien specifically addresses laws targeting conduct with a non-communicative component (e.g., retaining government documents), while time, place, and manner analysis often addresses the regulation of expressive activity in public fora (e.g., parade permits). The frameworks are closely aligned; courts sometimes use their language interchangeably.
The Court emphasized that a facially neutral law with a legitimate, substantial, and message-unrelated purpose is not unconstitutional simply because some legislators may have had a speech-suppressive motive. Constitutional analysis turns on the statute’s objective operation and the interests it serves, not isolated statements in legislative history.
Not under the rationale used in Texas v. Johnson and United States v. Eichman. Those cases struck down flag desecration laws because the asserted governmental interests (preserving the flag’s symbolic value) were related to suppressing the message conveyed by burning the flag, failing the third prong of O’Brien and triggering strict scrutiny, which the laws could not satisfy.
O’Brien imposes intermediate scrutiny. The fourth prong demands that the law’s incidental burden on expression be no greater than essential—i.e., it must be narrowly tailored to the substantial interest, leaving open ample alternative channels for communication and not sweeping in more speech-related conduct than necessary.
United States v. O’Brien supplies the enduring framework for evaluating government regulation of expressive conduct. By upholding a facially neutral prohibition on destroying draft cards, the Court clarified that the First Amendment protects expression but does not give citizens a general license to violate content-neutral laws directed at legitimate, non-speech-related governmental interests.
For law students, O’Brien is indispensable: it operationalizes intermediate scrutiny for symbolic speech, distinguishes content-neutral objectives from message suppression, and instructs how to analyze statutes that incidentally burden expression. Mastery of O’Brien’s four prongs is essential for navigating a wide array of First Amendment problems, from public protest regulations to administrative requirements that intersect with expressive activity.